ML20009C942

Opinions & Award Ordering That W Smart Be Reinstated W/Back Pay & All Incidents of Employment That Would Have Been His from 780321 Onward.Company Did Not Establish That Smart Was Discharged for Insubordination

ML20009C942
Person / Time
Site:	Callaway
Issue date:	11/01/1978
From:	Bernstein M AFFILIATION NOT ASSIGNED
To:	DANIEL CONSTRUCTION CO.
Shared Package
ML20009C941	List: ML20009C940 ML20009C942 ML20009C943
References
78K-17143, NUDOCS 8107220204
Download: ML20009C942 (15)

Text

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1. In th Ettter of ttte Arb grat ion be* tween y.. .. .. . .

Danict Construction Company.

Callaway Project, A DLvtalon of  ;

- Daniel Internttional Corporation, .

Employer FMCS Case No. ~f 8K/17143 and .

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p International Association of ~

Bridge, Structural, Ornamental .

Ironworkers, Machinery Movers 7 ,,, ' and Riggers, Local Union No. 396,  ;

7, Union . -

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jx .,.?/1((",,AppearancesY $"7'

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. For the Company, ,

H. J. Starr, Project Manager ,

. L. Lloyd Laughlin. Attorney C. Daniel Elizey, Attorney ,_

For the Union Barry J. Levine, Attorney Joseph J. Ilunt, Business Representative William Smart, Grievant ARBITRATOR'S OPI: IONS AND AUARD This arbitration arises under the co11cetive agreement between the t ~

Company and the Union (and several ather unions) entered into $eptember 30 -

Au' 1975 for the duration of the construction of the Union Electric Company's  :; :E s

Callaway County Nuclear Units 1 and 2.

4 In accordance with thit agreement. t he parties telect ed the undernigned- 3 arbitrator through the Federal Mediation .ind 0. 2cillat ion Service. By mutual-f agreement, the hearing was held in Jefferson Cfty, Missouri on Friday, g..

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), September 22, 197- The parties appeared as set forth above, presented ,

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witnesses and documentary evidence and cross-examined the other's witnesses.

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EXHIBIT A P107220204 810716 PDR ADOCK 05000483 O PDR

The arbitrator tape recorded the proceeding and, ou the reluent of tito Company, provided it utth a copy. It was agreed that the partien votttd f ile .

briefs postmarked no later than Saturday. October 14 and they were received by the arbitrator on October 16 and 17, thtis cloning the hearing.

Re Arbitrability At the outset of the hearing, the Company contested the arbitrability of the grievance on the grounds that the Union's request for arbitration.

came too late. The Union' argues that the Company's objection comes too late because it was never raised prior to the arbitration. While both sides vigorously pursued this argument, I find it unnecensary to resolve because another element in the case dioposes of the innue of arbitrablilty.

The discharge occurred on March 2L. 1975. . Article VII of the pro ject ,

Agreement provides, in pertinent part, after setting out.the several steps ,

from 1 to 5:

"Sec.2 In the event the dispute is not L reso?,ved by the procedures provided above i ulth in twenty (20) days after the filing

& of the written grievance, e!.ther party may, uithin the following ten (10) days, serve upon the other weltten notice requesting that the dispute be resolved by arbitrat,lon."

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h "Sec. 6 Any grievance not flied in writing uith the Employer within ten (LO) days from l the day of the occurrence on which the nelevance is based chall be forever barred."

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Initially the Union took the position that it formally grieved the

? Ilowever, when matter only in May so that it met the Section 2 time limits.

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I inquired about the impact of Section 6, which requires filing of a grievance 1

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it annected that the grievance was within 10 days of its occurrence, 4

timely filed by the Union'n March 22, 1978 letter to !!r. T. C. Smit h of That letter Personnel from Joseph J. Hunt, Jr., the Union's Business Agent.

states in part:

"This is an official notice that we 9 intend to invoke the grievance procedure as authorized in our Project Agreement in the termination of our member, William Smart, on March 21st."

t However, the Union's request for arbitration (Joint Exhi, bit No. 2) was i dated '.hy 12, 1978.

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- The Company vigorously contends that this filing far exceeds the time , , $.

Under Section 2, limits specified by the Project Agreement in Section 2.

once a timely grievance is filed, there are 20 days within which the griev- m ance procedure operates. If by the expirarlon of that 20 dayn, the diopute' f remains unresolved, either party "may, within the following t en (10) days, ,

serve upon the other written notice requesting that the dispute be resolved

• by arbitration". This means that if a party seeks arbitration, it must do so within these time limits. The Union's written request for arbitration cicarly falls outside the formally specified time licits.

However, as so of ten is the case, manager.ent and union practice departs substantially from the formalities of the agreement. The Project ' Personnel ' '

Director, who handled this and other craf t grievances under this Project l'

Agreement, testified without contradiction that the practice uent as follows h '

E for discharge cases. As soon as the Company received any notification or .

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i Union dissatisfaction with a disciplinary action, he (the Pe sonnel d-Director) and a Union official would get together as soon as possible but in, e h

• no event later than-10 days after the disputed occurrence was handled in L e, r

4th step. The several steps are set out in Section 1 of Article VII.

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. "Section 1. In the event that any dispute artsea out of the interpretation or app 1Leation of thia Agreement, exclusLve of questions of jurisdtetton on work, the following procedurea shall be pursued an the exclusive means for resolviny; the dispute: ,,

" Step 1. The Steward shall meet with the _

foreman involved. "i i

" Step 2. If the grievance is not settled in ,

Step 1, the steward and the foreman shall meet with the area superintendent.

1. " Step 3. If the grievance is not settled in Step 3, the Business Representative of the .

Union shall meet with the general superintendent. .

" Step 4. If the grievance is not settled in Step 3, the Buniness Representative of the -

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, ,' - Unionshallmeetwiththegeneralsuperintendent(r.-]

oc the project manager, y

" Step 5. If the grievance is not settled in Step,4 ./

anInternationaLRepresentativeshallmeetwith,a{f.~t, representative of the Employer's Corporate I. abor Relations Group, upon prompt request of either party..'

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In this case, Mr. Hunt called him and wanted to get together about this

' grievance on March 23. Eut, the Personnel Director was unable t > do so. Mr; Hunt'

expressed concern over meeting the 10 day time limit imposed, not by the formal ,

i Project Agreement, but by the parties' (including other craft union parties).'

f, practice. The Personnel Director assured Mr. Hunt that he would waive any time.

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beyond the ten days by adding whatever delay was caused by his inability tio'! meet'].

In fact, they met within the ten dayn. However, this episode is significant to }

F show that the parties operated under the Project Agreement quito differently ,

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k from its formal time requirements. Delayscausedbyinabilityoftheparticshi, k ;~;

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• representatives to get togetherwereaddedtothetimelimitsandtheagreemeiit,'['

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prescribed limits were waived.

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So, the Personnel Director testified, the Union had 10 days within which j to requent arbitration starting af ter the Director of Labor Relations denied

• the grievance at the 5th Step. The Union made that regn.st on ttiy 12, when it 3 t

W received the company's oral decision denying the grievance.

b The Company's formal notification of that action was in its letter of Itence, the demand for arbitration May 19, the completion of the 5th Step.

was timely and the dispute is arbitrable.

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The Issues

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The note questions before the arbitrator are:

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'/ 2^E' (1) Wan the Grievant. UItilam Smart. dincharged e

by the Company for disobeying a foreman's order? ..

U-(2) TC he wan, wan termination proper?

(3) If he was not, what is the appropriate remedy? ,

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$vidence, Findings and Discussion - <

The Grievant, !!r. Uilliam Smart, had worked in various capacities --

General Foreman, Foreman and Journeyman -- in the Ironworkers craft at the construction of the Callaway Generating Plant, a nuclear plant, being con- ,

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structed for the Union Electric Company. The discharge in dispute occurred .

on !! arch 21, 1978 based upon events of the prior day. This account focuses ~~ '

upon the events of those two days; carlier events util be discussed later for their possible utility in explaining actions and decisions that occurred ,

. ,. s on March 20 and 21, 1978. .

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On March.20, the Grievant worked as a Journeyman Irpnworker in .

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the Pump llouse under the direction of Foreman David Smaahy who was

A directing a gang of journeymen Ironworkers laying rodc for reenforced

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concrete.

The Pump IIouse is a idrge building and the rod laying and .

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la tying was being done about 30 feet below grotitid Icvel in a hole about 200 I

f eet by .'00 t'ee t . At the time in questlon, abois t /s l' . H . , fir . !*manhv tit.eod several feet above where the g.mg van working 4

! A General Foreman directa neveral Foremen, who, in turn direct their gangs. Mr. Charles llathcock, was the Cencral Foreman directing Mr. Sciashy's gang ( a=ong others). Mr. Hathcock and Mr. Smashy testified that the General

Foreman, talking across a considerable distance of about 40 feet from 10 feet above, told Mr. Smashy to have someone on his gang straighten a bent rod.

A Mr. Smashy testified that he called Mr. Smart by name, that Mr. Smart stood l-

,;. up f rom the work he was doing, tying rods, and looked at. him. tie said that

) Mr. Underwood, a " permit man" (not an fronworker in ihe local whose members were b doing the job), was workine, next to !!r. Smart and also 9tood up. Mr. Smashy said ""

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. that he told Mr. Smart, f rom a d Lut anen ot' about 10 to 20 feet, to straighten the.

t h rod and indicated which one, but that Mr. Smart "amirked", that he thinks

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Mr. Smart shrugged his shoulders, shcok his head once f rom side to side and went back to the work of tying rods. (tr. Itathcock had left the Fu:np House by this time, apparently.) Mr. Smashy did not repeat the order. The Foreman also testified that a Laborer Foreman, !!r. Mellor, standing nearby said seme-thing like, "He's not going to do It". Mr. Smashy told two other Ironworkers (Hennich and Simmons) to straighten the rod and they did so.

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In addition to the gang of ironworkers, Carpenters and Laborers were at work in the Pump House, but, Mr. Hathcock and Mr. Smashy testified that no

! machinery was going and that it was " dead quiet". As the Company brief states -

~~' and I observed. ite. Smachy speaks very quietly, unusually so. Nonetheless,. ,

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Mr. Smashy " assumed" that Mr. Smart heard him and that the alleged head shake.

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indicated a purposeful refusal. (For the reasons noted below, I do not fully.

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credit Mr. Smashy's testimony.) Mr. Smanhy did not rett anyone of the incident that evening (quittlut; time was 4:10 P.M.) although he tontilied that he regarded the incident as a challenge te. hin authority of a kind whleh could not be permitted. If one such successful challenge takes place, he said, his authority as Foreman would be undermined. Ilowever, there was no testimony that any Ironworker observed the incident. A Laborer Foreman, Mr. Mellor, re-portedly observed the exchange but later, according to the Assistant Project Manager, said. he did not want to be involved in any way.

After the starting time the next day, Mr. Smauhy told Mr. llathcock that ,

"I1111 Smart refused to otratchten t.he rod". (lle did not on thin oceanlon tell' Mr. llatheock that a abort time earlier Mr. Smart had alic'gedly been inaubordi--  :(

i nate; nor did he tell anyone eine. That nupposed incident could not havo -

influenced Mr. llathcock's decision to dincharge Mr. Smart.) Mr. Hathcock ,

asked him if he would be willing to sign papers discharging Mr. Smart. Mr. Smashy -

indicated that he would and later did so when Mr. Hathcock (not he) decided to dis-charge Mr. Scart. Soon af ter clie Smashy-llatheock conversation, they took Mr. Scart from the Pump House and went with him to Robert Cross, the Ironworker Steward.

When the alleged incident was recounted to Mr. Cross in Mr. Smart's ,

presence, the latter said that he had heard no such order. Mr. Smashy asked * '#

Mr. Smart if he was hard of hearing. Mr. Smart sa id, "That's none of your

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c goddam business". I regard Mr. Smashy's question as a bit schoolmarmish and ,

> rhetorical,.it not sarcastic. Mr. Smart ' n sharp reply. tean , in such a setting. A .-

i p mild stuff. (In an office, it might be another matter.), Moreover, in the construction craf ts, journeymen and foremen frequently change roles. Indeed,

• in the past, Mr. Smashy had played Journeyman to Mr. Smart as Foreman. ,

Personal formal deference playn no.part in these relationships. Of course, L

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I the Journeyrian must perform hin job an the Forenan directs and may not tindernine the Foreman's authority. 11u t , in thin setting. Str. Smar t ' n renponne doec not convey an insubordinate attitude; it expresnen no more than irritation and carr.es the mesnane," Don't treat me like a schoolboy". And t!r. Smashy must not have taken offense because, after !!r. Smart asserted that he had not heard

• the or'dar described, !!r. Smashy asserted that he was utiling to take tir. Smart' back on his gang. This willingness suggests that tir. Smashy either creditgd t,he .

good faith of Ifr. Smart's denial or, possibly had some doubt whether Fir. Smart had I heard hi:2. That willingness certainly is inconsistent with the view that J tie. Scart had been innubordinat e, because tir. Smashv uan quite firn that a suc-I cennful insubordination would be latal to hin aut horit y. It alno in inconnintent f

with the alleged earlier innuhordinatlon, the aliened "umirk" and the one negat ive wag of the head he attributed to t!r. Smart. Indeed, as I heard those testimonial details, they immediately struck me as embellishmenen designed to attengthen a questionable story.

The record does not affirmatively establish that ?!r . Smart heard the order, if it was given. I find it unbelievable that it uas " dead quiet" in a work place where 5 or 6 Ironworkers are tying rods., and a gang of Laborers and a gans; of Carpenters all are doing their thing. Although Str.11atheock and !!r. Smashy

• testified that the compressor and orher machines were not operating (although they often were operating in the Pump I!ouse), I find that the record doen not entablinh that tir . 11athcock ef feetually ecmmunicated bin order acrons a distance of 40 feet and'a height differential of about 10 feet o r t ha t the softcpoken tir. Snanhy gave a direct order to Str. $ mart that effectively communi-cated itself to his hearin:; and consciousness. ,

! or does conscious, purposef ul disobedience of tr. Smashy's alleged order

. make sense in view of !!r. Smar:s oth r undisput ed conduc t that day.

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3 Mr. Smart, who testifled last in the proceeding, said that at the cime of' the alleged order and insubord tuation, he was in fact directing the crew, i at Mr. Smaahy's requent, to fix up the roda so that they lay property spaced and aligned af ter Mr. Smashy could not get them straightened away. Mr. Smart j undertook that task. Mr. Smashy confirmed the incident but said that it had odeurred earlier in the day. I find it unbelievable that Mr. Smart would be so industrious, obliging and workmanlike early in the af ternoon and insubordinate 1y refuse a simple, direct order soon thereaf ter.

l It is true that tir. James Underwood, a " permit man" no longer employed l on this project, testified that tie. Smaahy called Mr. Smart's name at about the ~' , .

time of the alleged order and that he (underwood) and Smart straightencil up .

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fron tying rods and looked at Mr. Smashy , who then said nothing. When I heard thin testimony, I did not believe the last part or it. It appeared to me (even before I heard Mr. Smart's dif fering version) that Mr. Underwood was ,

trying to be helpful to Mr. Smart; but he was not convincing in the role.

At first, ~ in the discussion with Mr. Cross, Mr. Underwood denied any knowledge of the incident. Mr. Underwood heard some of the story during the discussion , &

with tir. Cross and Mr. Hathcock on March 21. Just what he concocted and when and what was true, I could not figure out. Unfortunately, it is not uncommon-for fellow employees to try to provide obliging testimony. However, it often

.,w does not , fit the circumstances. Mr. Underwood's partial substantiation of i 1

Mr. Smashy's veraton (as well as his partial contradletion) did not persuade me. . e)  !

Mr. Smart's testimony struck me as direct, candid and not fashioned for the, A

I think it most likely that he was involved in therealigningtas(g

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occasion.

at the time of the disputed incident. But even if he we're tying rods, it appeared to me that.hin denial that he heard and refused a direct order (which~

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?!r. ::marr in a bright , quick and I am not at all nure uan niven) wan candid.

Ilin ninnic mindedneun f'Ita hin dencription that when stroa3-ninded person.

is happening he is icmerced in an activity, he becomes oblivious to what i around hi:a.

So that, if the order were given (and I'm somouhat dubious 1 Especially about that), it makes sense that it might not have registered.

given Mr. Smashy's quiet ctanner, it would very likely not penetrate Mr. Smart's I consciousness when he was engrossed in a task. It takes an actually i coc=urtcated, order, one apprehended by the employee, before insubordination I can take place. The record does not affirmatively establish, as it must to that such an order was in fact given Justify a dischstge for insubordination, Mr. Smanhy's testimony alone does not establish.

t or effectively communicated. '

the requisite showinn and Mr. Snart's testiraony casts serious doubt upon it.

Altbonnh Mr. Smashy, ,, , ,

Nor do I f ind confirmation in Mr. Mellor's statement. ' a:

cach reported Mr. Mellor'u asserrion that Mr. Mellor~. P.

Mr. Cross and Mr. Sykora r

said, "He's not going to do it" (or some such thing), it doesn't confirm that,

the circumst'ances

' Mr. Mellor did so candidly nor that he would testify that i Lacking an indicated that Mr, Smart probably heard and comprehended an order.

opportunity to explore what Mr. Mellor would say he heard and saw, I cannot of what he said to attach any probative unight to the substence of the report I others.

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But, even if the record did establish an order communicated and actually l

I the Gener 1 defied (about which I entertain some doubt), Mr. liar.heock.

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i make the Foreman who decided epon Mr. r: mart'n dincharne, clearly ~ did not I

Ite decision to discharge !!r. Smart byaune of that alleged inocbordination.

Smashy-testified that he reached that conclusion immediately af ter talking to Mr.

Early H his testimony, the Conceal and before the conf erence

• ith Mr. Cross.

Foreman also asserted that this decinion was influenced by Mr. Smart's alleg

{ But inadequate performance. a few weeks earlier when tir. Smart was a Foreman.

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ll that story came in so nany versions by the witness, that it became unbelievable and made it appear that the witness was casting about to give greater substance As that version began to his decision to fire Mr. Smart for incubordination.

to unravel, it emerged that soon af ter !!r. Smart was assigned as a Foreman under Mr. Hathcock's jurisdiction, the latter observed a yellow truck driven by )

the project's Assistant General Superintendent repeatedly circling the aren where Mr. Smart worked. In Mr. Hathcock's opinion, that activity could only

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have the purpose of keeping Mr. Smart under surveillance, a surveillance 4 unusual for its intensity. In addition, Mr. Hathcock was instructed not to , , ,

allow Mr. Smart to work in several areas, a situation Mr. Hathcock fotind ' rt vt-

- hampering to the performance of his job an a fieneral Foreman. So. he testified .

that he deduced that Mr. Smart would have t o "tue- the litte pretty clone", that[,[ p Mr. Smart had to be " extra careful" and was in a "npecial position" because of.i . i the allegatic ts Mr. Snart made to the !!uclear Reautatory Coimnission (although he. .>

also testified that Mr. Smith, the Company's Project Personnel Director, told .

him to treat Mr. Smart the same as anyone else). He testified that no one "ever came right out" and told him to fire Mr. Smart, but quite clearly that is what the sum of the Company's special attention to and restrictions upon Mr. Scarr added'up to for Mr. Hathcock. The probability that Mr. Hathcock decided to use the incident as an excuse in reenforced by Mr. Fathcock's reference to Company pressure on him about Mr. S.nart at the conference with Mr. Cross. So that'when the situation arone on March 21, he agreed. he van just as happy to get rid of the headache that Mr. Smart represented and gave the Company the decision he .

thought it wanted. Also, the record casta ame anuut upon the company assection'.

' .Jf that discharge wit *mut some warning uould be the normal treatment of a non-- +y flagrant f ailurr of'a Journeyman to follow a Foreman's order. The Union . .

• established that several separdtions for insubordination were in collusion with the foremen involved to enahic the employees to collect their pay

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- is:nediately whereau a quit would entall a delay of a veek or so. And, the record shown, a verba l .warninr. would be the .sppropriat e mnet ton for a non-nerloun failure to f ollow an order, with the nerlonunenn let t to thr l'o r em. m ' n discretion.

Mr. Smart also alleged that,at the interview with Mr. Cross, it was agreed by Mr. Smashy ~and Mr. Hathcock to take Mr. Smart *:ack but that Mr. Hathcock decided to fire him when Mr. Sma- said that he would prefer to work elsewhere as a journeyman and so he was fired, not for insubordination, .

! but.for his desire to transfer. Ile>cver, it appears to me char,while Mr. Smashy 1

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j cicarly expressed his willingness to take Mr. Smart back on his gang, l- Mr. llathcock (as he himnolf anaerted) never did more than keep nilent, did not I

i actively agree, and did not depart f om his ftrst dectaton to dincharge Mr. Smart.

l Af ter the conference with Mr. Cross, Mr. tlallace L. Sykora, .bisistant Project i

!!anager, was informed of the General Foreman's decision to discharge Mr. Smart j for alleged refusal to follow Mr. Smanhy's order. Mr. Sykora testified that he

! took special paina in inquiring whether adequate evidence existed to show t.he i

! refuscl (although he did not talk with Mr. Smart) beco 2se he was awar'e that that l setion would be publicized and subject the Compeny-to possibio criticism if i .

l see ningl.y unjustified. tihen he inquired whether Mr. Smart had. heard the order, l

it was Mr. I!athcock who annured him that he had. But, Mr. Itachcock was not i

i present and at this juncture would be trying to justify his decision. Ile also

! spoke to Mr. Smashy uho told him, as he had testified, that he had assumed i

! Mr. Smart heard him. But, it is not at all clear that Mr. Sykora was told that 1-

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Mr. Smashy was willing to take Mr. Snart back on his gang; while the evidence is inconclusive, it seems more likely that Mr. dykora was not told of this.

The Laborer Foreman reportedly told Mr. Sykora that he _ had told Mr. Smashy that- <

Mr. Smart was not gotng to do uhat he had been told to do, but that soon there-af ter he called Mr. Sykora to say that he had a uife and baby and did not want

to get involved. (:fr. Cross had, without doubt, told !!r. Ite11or that Mr. Smart might sue the Company, the Union and !!r. !!cilor, the Laborer. But .

Mr. S= art testified that Mellor, the same day, apologized to him and told him that ha was just trying to support the Foreman. As noted, I cannot attach much weight to the reports of what the Laborer Foreman said one way or another.

.\f ter this inquiry, Mr. Sykora ratified !!r. Hathcock's decision to dis-charge Mr. Smart. Nothing that Mr. Sykora said or did on March 21 indicates an improper motivation on bla part or In hLs actions on behalf of the Company. , .,

But Mr. Hathcock made the banic decision on behalf of the Company to discharge

• Mr. S= art and that decision was not based upon " good cause". Tc is,hard for the Co=pany's decision to rise above this polluted source even though there is no evidence that the General Foreman advised Mr. Sykora of the real reasons for his decision. .

Higher icvols of supervinion ordiaarily do not disown the decisions of supervisors unteun they have affttmative teanons for doing so. In this situation.

Mr. Sykora relled on the General Foreman's version of what occurred. That version necess::rtly was shaped to juntify the decision but did not disclose his -

actual mot ivation. The General Foreman la the agent of the Company; his motiva-tion for the discharge is attributable to it. .. e. ls Hence, I conclude that the Cc=pany did not sustain its burden of showing that it disenarged !!r. Smart for refusal to follow a Foreman's order.

g Remedy.

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In ita betef, the Company urged that should the discharge be found not to have been made for good cruise, back pay but not reinstatement would be the e

I L ba seil t his *;nggest eil courne on the ground of . the Cricvant's 4 -

proper remeilv.

tentimany at the heat itig a nil h ? . a- 'ti tu t oppot.ition Lo the Callaway Project as

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manifested in the "numer ous allegationa lhel nade to t!ie Nuclear Regulatory Commission". And, uhtle the Company staten that "!L uelcomen constructive criticisa for employees and recognizes the right of employees to address their complaints to Government agencies. . .this does not provide employees absolute i license to openly display their disloyalty to the Company.. .Such disloyalty flies in the face of all rational employer-employee relations".

The Company made no such argument at the hearing and so the issue was not effectively raised. This is no mere procedural pecadillo. The other ,

parties did not address the issue with their proof or in the Union's brief.

Indeed, in the considerable discussions of what factual question was at issue,'

hoth company and Union agreed that it was whether the Company had good cause to discharge !!r. Smart because be did not obey a direct order of this Foreman.

At the hearing, the Company took pa tun to avoid the isnue of whether its dis -

charge was motivated by "fr. Snart's activitica in relation to the Nucicar.

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Regulatory Commission.

The Coepany's argument about remedy and the issue of what employee activity. -

militates against reinstatenent. aimply were not addressed. Had the Company.

desired to raise- those issues, it could have done so at the hearing. It chose ~ .

not to. Tha effort comes too late in the brief. .

Moreover, the request.seems tantamount to arguing that even if the Company; '

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3 f ailed to establish y. cod cause for discharge, the At hi trator should f ind good '

cause in Mr. Smart's alleged disloyalty as discussed and explored at the hearing.-

Alternatively,it amounts to the proponttion that if the Company violated the s

, T, agreement by improperly discharging Mr. Smart, it could use that as a spring ' '

board for being quit of him for an entirely different reason, a reason which it' had not asserted as grounds for discharge and which it impliedly disouned in  : ,

the testimony of -}hr. Sykora. Indeed, as noted, the request casts additional -

doubt upon the Company's motivation for the original discharge last March.

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For all of tiiene r e.i so n s , I conclude that t !ie troia l reme.ly for tin itint i f ied illneharpe, icisintatement, i.hould li. niilei.il.

AWARD: The Grievance in grant ed on t he ground that the company did not establish that Mr. Smart had been discharged for being insubordinate by disobeying a direct order from his Foreman, lie is ordered reinstated with back pay and all incidents of employment that otherwise would have been his fron March 21, 1978 onward.

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Respectfully stibaltLed,

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Merton C. liernstein, Arbitrator 1ovember 1, 1978

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St. Louis, Missouri i

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